Ahram Weekly

Storm over a burkini

There was much controversy in France this summer over bans on the wearing of the burkini, a form of full-body swimwear aimed at Muslim women, writes David Tresilian in Paris

world

Al-Ahram Weekly

Controversy came to France in the unlikely shape of bans on the wearing of the burkini, a form of full-body swimwear aimed at Muslim women, on beaches in the south of the country this summer, to the bemusement of some and the outrage of others.

The bans were the latest installment in a debate on wearing clothing signalling religious affiliation in France, which had earlier seen a ban on the wearing of headscarves, or the hijab, by Muslim women in state institutions, including schools, and on the wearing of the full face veil, or niqab, in public places.

However, the burkini bans, as they were dubbed in the international press, were not the result of national legislation, unlike the earlier bans on the hijab and niqab. Instead, they were the result of local by-laws decreed by the mayors of towns in the south of France, and they were no sooner passed than they were contested on the grounds of appropriateness and legality.

The local mayors had gone beyond their authority in instigating such bans on public beaches, many observers felt, and there were immediate challenges to their legal authority.

The bans were overturned by a ruling of the Conseil d’État, France’s highest legal authority, on 26 August, though this was not before photographs had appeared in the French and international press of fully clothed women, some of whom may or may not have been wearing burkinis, apparently being told to undress on French beaches or risk exclusion.

The controversy started at the end of July when the authorities in the resort town of Cannes on France’s Mediterranean coast decided to ban the wearing of burkinis on public beaches, instructing those using them to wear clothing that was “respectful of bonnes moeurs [proper behaviour] and secularism and respecting good hygiene and the security of other bathers.”

The ban then spread to other towns in the area, including Nice, such that by the time the bans were challenged in court on 22 August at the instigation of the French Ligue des droits de l’homme (LDH) and Comité Contre l’Islamophobie en France (CCIF), both protesting at what they said were attacks on individual freedom, the police had been called some two dozen times to beaches in Cannes and Nice to warn inappropriately clad bathers.

According to a report in the French newspaper Le Monde on 26 August, 24 police warnings had been given out to women bathers on beaches in Nice, with a further six being handed out in nearby Cannes where the ban specifically warned bathers from wearing clothing “signalling religious affiliation in an ostentatious fashion on beaches”.

In the first court challenge, heard by a court in Nice on 22 August and regarding a ban in the nearby town of Villeneuve-Loubet, the judges found in favour of the ban.

“Wearing an item of clothing on a beach that signals in an ostentatious fashion the wearer’s religious beliefs” – such as a burkini – “could be felt by some as an act of defiance or provocation” after the terrorist attacks in Nice and Saint-Étienne-du-Rouvray in northern France, the judges wrote, possibly leading to public disorder.

In its ruling striking down the bans on 26 August the Conseil d’État rejected the lower court’s view that the wearing of the burkini on beaches could lead to public disorder. While local mayors were responsible for this, the judges wrote, it had to be ensured in a way consonant with basic freedoms.

Any measures taken had to be “appropriate, necessary and proportionate and related only to the needs of public order,” the judges wrote. “It is not the mayor’s job to take other considerations into account, and any restrictions on freedoms must be justified by well-founded risks of public disorder… In the absence of such risks, the concerns and emotional reaction resulting from terrorist attacks, notably that in Nice on 14 July, cannot legally serve to justify a ban.”

While the ruling renders the local bans on the wearing of the burkini on beaches in France illegal, it has not ended the controversy, however.

Not only have several high-profile French politicians pitched in on the bans, including French Prime Minister Manuel Valls and presidential elections frontrunner former French president Nicolas Sarkozy, but the bans have also been related to an ongoing debate in France about the wearing of clothing having a perceived religious signification.

In an interview with the local newspaper La Provence on 17 August, Valls said he “understood” the point of view of the local mayors and “supported” their decision to order bans on the wearing of the burkini. The burkini was part of a “political project,” he said, was based on the “enslavement of women,” and was “not compatible with French values or the values of the French republic”.

According to Sarkozy’s recent book Tout pour la France, seen as an opening shot in his campaign to be re-elected French president in the elections early next year, there needs to be a law in France against the wearing of the Muslim headscarf in public offices and universities in France, as well as in private companies, in addition to a nationwide ban on the burkini.

Reaction abroad to the controversy has been largely uncomprehending, with the New York Times commenting in an editorial on 22 August that “after bans on full-face veils, headscarves in schools and rules about students’ skirt lengths, France’s perennial problem with Muslim women’s attire has taken its most farcical turn yet with a new controversy over the ‘burkini’”

“Five French mayors [have called] it, variously, a threat to public order, hygiene, water safety and morality, tantamount to a new weapon of war against the French republic,” the paper commented. “French officials should address the real terrorist threat and not try to dictate to Muslim women what they may not wear.”

However, in its brusque fashion the paper denied its readers other insights into the French debates, supplied in a comprehensive article in Le Monde which pointed out that the regulations the New York Times referred to had been variously motivated.

While French civil servants have had a duty not to signal their religious affiliations at work at least since a law of 1905 guaranteeing the separation of church and state, a new duty was introduced in 2004, the article said, when this was extended to those using public services as well as those employed by them.

This meant that pupils in state schools in France no longer had the right to wear items signalling their religious affiliations when in school, among them the headscarves worn by some Muslim girls, since the state had a duty to protect young people from religious proselytism and to guarantee the neutrality of public institutions.

In 2010, a further step was taken in the banning of the wearing of the full-face veil, or niqab, in public places in France.

On this occasion, it proved impossible legally to ban the wearing of this item on the grounds of the state’s duty to ensure religious neutrality in public institutions, the article said, but it could be done on the grounds that “concealing the face in public places is an act of dehumanising symbolic violence that harms society as a whole.”

These arguments, the one banning the wearing of religious items in state schools and other institutions by the users as well as the employees of those institutions and the other outlawing the deliberate concealment of the face in public places, have been associated with controversies over styles of dress adopted by some French Muslim women.

However, in its judgement of 26 August on the burkini bans introduced on some French beaches the Conseil d’État did not refer to either, instead judging the bans illegal on the grounds that there were insufficient reasons to suppose the wearing of the burkini constituted a threat to public order.

"Farcical" or not, the reasons given for the burkini bans and for their rejection by the Conseil d'État represent a new stage in legal reasoning distinct from that employed in earlier restrictions on the wearing of the hijab and niqab in France.

It was here that the attempted burkini bans marked a new departure, the article in Le Monde said, since the bans had been brought in in most cases as a result of local concerns over bonnes moeurs and possible public disorder and not out of a desire to make beaches religiously neutral spaces, as had been reported in parts of the international press.